Kratzer v. Kratzer, ED 104462

• Decision Date: 09 May 2017
• Docket Number: No. ED 104462,ED 104462
• Citation: 520 S.W.3d 809
• Parties: Tracy L. KRATZER, Respondent, v. Michael R. KRATZER, Appellant.
• Court: Missouri Court of Appeals

520 S.W.3d 809

Tracy L. KRATZER, Respondent,

v.Michael R. KRATZER, Appellant.

No. ED 104462

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: May 9, 2017

Rehearing Denied June 22, 2017

Jane E. Tomich, St. Charles, MO, for Respondent.

Jonathan D. Marks, St. Louis, MO, for Appellant.

Colleen Dolan, Judge

I. Introduction

Michael R. Kratzer ("Husband") appeals the trial court's order and judgment of dissolution of marriage ("Judgment") to Tracy L. Kratzer ("Wife"). Husband argues the court erred and abused its discretion by: (1) ordering Husband pay Wife modifiable maintenance of $1,800 per month; (2) calculating child support without imputing any income to Wife; (3) awarding Wife 60% of the marital portion of Husband's MOSERS¹ Pension Plan; (4) making an unequal distribution of marital property; (5) overvaluing Husband's partnership interest in Value Homes, LLC; and (6) ordering Husband pay a portion of Wife's attorney's fees.

We affirm the Judgment with exception to its award of 60% of the marital portion of Husband's MOSERS Pension Plan, which we reverse and remand with directions to amend the Judgment to conform with this opinion and the trial court's "Second Amended Missouri State Employees' Retirement System Division of Benefits Order" filed on September 9, 2016.

II. Factual and Procedural Background

Husband and Wife were married on August 30, 1986. They have two children, a son, R.K., ("Son") and a daughter, A.K., ("Daughter"). Both children are over the age of majority and son is emancipated. Daughter is not capable of supporting herself or living independently due to her severe medical and developmental disabilities. Husband and Wife separated in April of 2012, and Wife filed a petition for legal separation on July 2, 2012. Husband filed a counter-petition for dissolution of marriage on August 3, 2012. On August 27, 2012, the court entered a Judgment Pendente Lite ("PDL"), ordering Husband to pay Wife $1,600 per month in maintenance. This order allowed Husband to have temporary custody of Daughter every other weekend beginning September 7, 2012. The PDL also prohibited either party from removing, selling, transferring, or otherwise disposing of any marital or separate property unless specifically agreed to by both parties in writing. Both parties filed amended petitions on August 22, 2013. In June 2014, the court appointed a Guardian ad litem ("GAL") for Daughter. The court increased the monthly amount of maintenance to $1,800 in December 2014 and ordered Husband to pay a $25,000 bonus he had received, minus state and federal taxes, to Wife's attorney for partial payment of her attorney's fees.

On January 29, 2015, the court ordered Husband to deposit into the registry of the court the $50,000 he received for selling his partnership interest in Value Homes, LLC. The court found the partnership interest was marital property, which Husband sold without court approval or Wife's consent, in violation of the court's previous orders. On February 6, 2015, the court entered a judgment granting the GAL's and the parties' request for disbursement of attorneys' fees, and it ordered the $50,000 deposited with the court be distributed as follows: (1) $10,000 to the GAL, (2) $10,000 to Wife's attorney, and (3) $10,000 to Husband's attorney. The court later ordered the remaining $20,000 be split between Husband and Wife equally.

Trial was held on June 16–17, July 14, and August 19, 2015.² The court entered its Judgment on January 27, 2016, dividing the marital property, awarding separate property, and ordering Husband pay Wife maintenance of $1,800 per month. The court additionally awarded Wife the marital home, 60% of the marital portion of Husband's MOSERS Pension Plan and Uni–Group Deferred Contribution Plan. Furthermore, it ordered Husband to pay Wife an equalization payment of $15,475.50 and pay $15,000 of Wife's attorney's fees.

On February 26, 2016, Husband filed a combined motion to amend, motion for new trial, and motion to reopen evidence. The court denied this motion on May 25, 2016. Husband timely filed his notice of appeal on June 3, 2016. This appeal follows.

III. Standard of Review

An appellate court will affirm a trial court's dissolution of marriage judgment so long as there was substantial evidence to support the trial court's holding, it was not against the weight of the evidence, and it did not erroneously declare or apply the law. Cule v. Cule , 457 S.W.3d 858, 862 (Mo. App. E.D. 2015) (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ). On appeal, we view the evidence and inferences "in the light most favorable to the trial court's judgment and disregard all contrary evidence and inferences." Id. "The party challenging the dissolution decree has the burden of demonstrating error." McCallum v. McCallum , 128 S.W.3d 62, 66 (Mo. App. E.D. 2003).

IV. Discussion

Husband argues the court erred and abused its discretion in six ways: (1) ordering Husband pay Wife modifiable maintenance of $1,800 per month; (2) calculating child support without imputing any income to Wife; (3) awarding Wife 60% of the marital portion of Husband's MOSERS Pension Plan; (4) making an unequal distribution of marital property, including but not limited to awarding Wife 60% of the marital share of Husband's Uni–Group Deferred Contribution Plan, all equity in the marital home, and an equalization payment of $15,475.50; (5) overvaluing Husband's partnership interest in Value Homes, LLC at $77,500 rather than $50,000; and (6) ordering Husband pay $15,000 of Wife's attorney's fees.

i. The trial court did not err in ordering Husband pay Wife modifiable maintenance of $1,800 per month.

A court may award maintenance pursuant to § 452.335³ only if the court finds a spouse: "(1) lacks sufficient property, including marital property apportioned to [her], to provide for [her] reasonable needs; and (2) is unable to support [herself] through appropriate employment[.]" § 452.335.1. Once a court determines a spouse meets this threshold test, the court looks to the statutory factors set out in § 452.335.2 to determine the appropriate amount and duration of maintenance. Unless we find that the amount awarded is "patently unwarranted and wholly beyond the means of the spouse who pays" we will not disturb the court's award of maintenance. Souci v. Souci , 284 S.W.3d 749, 758 (Mo. App. S.D. 2009). The challenging party "bears the burden of proving the maintenance award shocks this Court's sense of justice." Id. (internal quotation marks omitted).

The trial court looked at the award of marital property and found that Wife lacked sufficient property to meet her reasonable needs and was unable to support herself through appropriate employment. The court stated that Wife is the custodian of the parties' disabled Daughter, and this responsibility does not permit Wife to work full-time. The court found that Husband "does not participate as a custodian for [Daughter][,] placing upon Wife a greater burden." The court concluded that Wife does not have income to meet her reasonable needs, which the court calculated to be $2,901 per month.

The court then considered the statutory factors under § 452.335.2 and found that Wife was unable to be employed full-time outside of the home because of Daughter's disabilities, which require Daughter to have 24–hour care. § 452.335.2(1).⁴ The court additionally found that the property apportioned to Wife would not provide any current support to help pay her monthly expenses, and Wife does not have any monies available to her to meet her reasonable needs. Id. The court found that Wife has an average of $695.44 per month in Social Security Disability benefits available to her as representative payee to meet Daughter's reasonable needs. The court did not find that Wife was physically unable to work, but did find she is unable to work as much as she could during the marriage due to her responsibilities as custodian of Daughter. § 452.335.2(3). The court also found the parties could not support the same standard of living established during the marriage, in part due to the debts incurred as a result of the dissolution proceedings. § 452.335.2(5)–(6).

With regards to Husband's earning capacity, the court found that Husband earned approximately $45,000 per year at the time he filed a petition for dissolution of marriage. However, at the time of trial, the court found that Husband earned a gross annual income of $80,000 per year. The court found Husband's net monthly income was $4,890 after deducting the costs of health insurance and taxes. The court stated that at the time of trial, Husband lived with his girlfriend who provides financial assistance to him on a monthly basis. Accordingly, the court concluded that Husband had sufficient income leftover each month to pay maintenance to Wife and meet some of her reasonable needs. § 452.335.2(8).

Additionally, the court found that Husband had committed misconduct by liquidating the two largest marital assets—besides the marital home—in violation of the court's PDL. Section 452.335 permits the court to consider the conduct of the parties during the marriage and dissolution, including their respective misconduct. Sweet v. Sweet , 154 S.W.3d 499, 505 (Mo. App. W.D. 2005) (citing § 452.335.2(9)). Husband transferred $109,000 out of his 457 Deferred Compensation Plan retirement account and sold the marital partnership interest in Value Homes, LLC for $50,000. Additionally, the court found Husband's choice to live far away from Wife and Daughter increased Wife's obligation and responsibility for Daughter's care to 24 hours a day, seven days a week, with little to no assistance from Husband.⁵

Husband argues on appeal that the evidence at trial demonstrated that Wife is capable of earning income sufficient to support herself through her photography business. Husband argues that the court failed to recognize that Wife deliberately chose to not work and "gave Wife a ‘pass' on...